Week 6 Flashcards
Overview of the EU legislation in the field of intellectual property rights.
1
Q
What is lecture 6 about ?
A
Sources of EU law. Primary law. Secondary law. International treaties and 3 their effect in EU law with particular regard to intellectual property (e.g. TRIPS in EU legal order).
2
Q
Sources of EU law:
A
1
3
Q
What is primary EU law?
A
1
4
Q
What is secondary EU law?
A
1
5
Q
The sources of EU primary law include:
A
accession treaties
6
Q
Regulation as a source of Union law:
A
- is directly applicable
- shall be binding in its entirety
7
Q
The decision as EU legal act:
A
shall bind in entirety
8
Q
1
A
the provision of an international agreement concluded by the Union is directly effective in the Member States, provided that certain conditions are met regarding the purpose of the contract and the wording of that provision
9
Q
How can the EU law be divided into?
A
Primary law and secondary law.
10
Q
What does the primary law include?
A
Treaties and access to treaties and protocols to the treaties, general principles of EU law written and unwritten, decisions of EU institutions of institutional and constitutional dimension.
11
Q
Is the Charter of Fundamental Rights of the EU primary or secondary law?
A
Primary law.
12
Q
What is the secondary law?
A
The secondary law is issued on the basis of primary law to exercise the union’s competences the institutions shall adopt the regulations, directives, and decisions as well as recommendations and opinions.
13
Q
Do regulations, directives, and decisions have a binding character?
A
Yes.
14
Q
Do recommendations and opinions have a binding character?
A
No.
15
Q
What does it mean that a regulation has a general application?
A
It means that it contains general and abstract norms binding not only the states but also individuals.
16
Q
Does a directive have general application?
A
No. The directive is binding as a rule only the member states to whom it is addressed.
17
Q
Is a decision directly applicable?
A
Yes.
18
Q
Are international agreements of the European Union binding?
A
Yes. They are binding on the institutions of the EU and the member states.
19
Q
Are accession countries bound by international agreements concluded by the EU prior to their accession?
A
Yes.
20
Q
Who will bear the international responsibility if a member state violates the provisions of the agreement concluded by the EU?
A
The EU will bear its international responsibility because it’s a part and has made commitments to third countries. Member states can be held liable under union law for the violation of their obligations under the treaties.
21
Q
Where is EU law promulgated in?
A
In the official journal of the EU.
22
Q
Is there a hierarchical relationship between EU legal acts?
A
Yes. A division into primary and secondary law is based on hierarchy relations and the EU international agreements are between the primary and secondary law.
23
Q
Is there a hierarchy relationship between the delegated and implementing legal acts?
A
Yes.
24
Q
Who is responsible for constitutional control over EU legal acts?
A
The Court of Justice of the European Union.
25
What is article 48 of the Treaty on the EU.
1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.
Ordinary revision procedure
2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institu tional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
Simplified revision procedures
6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.
The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.
7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.
Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.
Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.
For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
26
Of how many titles does the Charter of Fundamental Rights of the EU consist of?
It consists of six titles on fundamental freedoms and one general title including General provisions on the application of the Charter.
27
When was the Charter of Fundamental Rights of the EU adapted?
On the 12th December 2007 at Strassbourg.
28
Does the Charter of Fundamental Rights of the EU have the same value as the treaties?
Yes.
29
Name the areas of fundamental rights according to the Charter of Fundamental Rights of the EU.
..
30
What can we find in the title concerning solidarity of the Charter of Fundamental Rights of the EU?
Workers rights to information and consultation within the undertaking, the right of collective bargaining and action, right of access to placement services, provisions regarding protection in the event of unjustified dismissal for the just working conditions, prohibitions of child labor and protection of young people at work, social security and social assistance, environmental protection and consumer protection.
31
What is article 20. of the Treaty on the Functioning of the European Union?
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
32
Explain the citizenship of the Union.
Every person holding the nationality of the member states shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
33
What rights do the citizens of the Union enjoy?
They shall enjoy the rights and be subjects to duties provided for in the treaties. They shall have in particular the right to move and reside freely within the territory of the member states, and the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their member state of residence under the same conditions as national residents. They enjoy the protection of the diplomatic and consular authorities of any member state on the same conditions as nationals of that state. They have the right to petition to the European Parliament, to apply to European Ombudsman and to address the institutions and advisory bodies of the union in any of the Treaty languages and to obtain a reply in the same language.
34
When can a citizen of the Union refer to EU Ombudsman?
In case of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting its judicial role.
35
Why does the Court of Justice pay particular attention to EU citizenship?
In the light of its jurisprudence, it's a fundamental status of an individual in the EU in Title 6 of the Charter of Fundamental Rights.
36
What is article 6 of the Treaty on EU?
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.
37
What is article 218 of the Treaty on the Functioning of the European Union?
1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.
2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.
3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision auth orising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.
4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.
5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.
The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.
(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.
7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.
8. The Council shall act by a qualified majority throughout the procedure.
However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.
9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.
10. The European Parliament shall be immediately and fully informed at all stages of the procedure.
11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.
38
What is the opinion of the Court of Justice of the EU of 18 December 2014 issued on the basis of article 218. paragraph 11. of the Treaty on the Functioning of the European Union?
That the agreement on the accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms negotiated between the Council of Europe and the EU is not compatible with EU law.
39
What is article 288. of the Treaty on the Functioning of the European Union?
To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
40
What kind of application does a regulation have?
General application.
41
How do directives bind?
Only with the regard to the purpose to be achieved.
42
What kind of regulations are prohibited to implement in the light of the jurisprudence of the Court of Justice?
It is prohibited to implement regulations of international law meaning to copy the provisions of EU regulation into national legal acts. This may result in a violation of uniform application of EU law in all member states.
43
What is one of the most characteristic features of a directive?
Provisions on transposition.
44
Name one directive as an example for provisions on transposition.
The Directive of the European Parliament and of the Council on the application of patients rights and cross border healthcare.
45
To whom may the decision be addressed to?
To an individual one or two or even all the member states but it may equally not indicate an addressee
46
Give an example for the performance of obligations under an international agreement that requires actions taken by member state authorities.
Application by the national customs authorities of a customs tariff resulting from an international trade agreement with a third country.
47
What is article 258. of the Treaty on the Functioning of the European Union?
If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.
48
Can international agreement concluded by the Union violate the provisions of primary law?
No.
49
Must secondary legislation adopted by the EU institutions comply with international agreements?
Yes.
50
What is the only authentic version of The official journal of the European Union since 1 st July 2013?
The electronic edition.
51
What kind of signature does the The Official Journal of the EU have?
An advanced electronic signature which guarantees its authenticity, integrity and instability.
52
What is article 297. of the Treaty on the Functioning of the European Union?
1. Legislative acts adopted under the ordinary legislative procedure shall be signed by the President of the European Parliament and by the President of the Council.
Legislative acts adopted under a special legislative procedure shall be signed by the President of the institution which adopted them.
Legislative acts shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.
2. Non-legislative acts adopted in the form of regulations, directives or decisions, when the latter do not specify to whom they are addressed, shall be signed by the President of the institution which adopted them.
Regulations and directives which are addressed to all Member States, as well as decisions which do not specify to whom they are addressed, shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.
Other directives, and decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification.
53
When do legislative acts adopted by the Parliament and Council under the ordinary legislative procedure enter into force?
On the date specified in them or in the absence thereof on the 28th day following that of their publication in The Official Journal of the EU.
54
When do regulations and directives which are addressed to all member states, as well as decisions which do not specify to whom they addressed to, enter into force?
On the date specified in them or in the absence thereof on the 20th day following that of their publication.
55
When do directives and decisions which specify to whom they are addressed enter into force?
They shall be notified to those to whom they are addressed and shall take effect upon such notification.
56
What is article 290. of the Treaty on the Functioning of the European Union?
1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.
The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.
2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:
(a) the European Parliament or the Council may decide to revoke the delegation;
(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.
For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.
3. The adjective ‘delegated’ shall be inserted in the title of delegated acts.
57
What may a legislative act delegate to the Commission?
The power to adopt non-legislative acts of general application.
58
Who can revoke the delegation given by a legislative act to the Commission?
The European Parliament or the Council.
59
What is article 291. of the Treaty on the Functioning of the European Union?
1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.
2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.
3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers.
4. The word ‘implementing’ shall be inserted in the title of implementing acts.
60
What is article 263. of the Treaty on the Functioning of the European Union?
The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.
Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
61
Who shall review the legality of legislative acts of the Council or the Commission and of the European Central Bank?
The Court of Justice of the European Union.
62
On what grounds may the European Parliament, the Council or the Commission institute proceedings against an Act addressed to a third party?
- lack of competence
- infringement of an essential procedure or other requirement infringement of the treaties or any rule of law relating to their application
- misuse of powers
63
What is article 267. of the Treaty on the Functioning of the European Union?
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
64
In what case was the subject of judgement what shall the Court of the member state do in case of doubts as to the validity of EU secondary law act?
The judgement of the Court of Justice of the ‚987. in the so-called PhotoFrost case.
65
What did the Court of Justice held in the PhotoFrost case?
The Court held that national courts against host decisions may consider the validity of community as a judicial remedy under national law (Now EU Act). And if they consider that the grounds put forward before them by their parties in support of the invalidity are unfounded, they may reject them.
